The role of the criminal justice system in excluding unfit persons from firearm ownership  Institute for Human Rights  & Criminal Justice Studies

The legal framework Old Arms and Ammunition Act still largely in effect Firearm licences required by law, issued by the SAPS Declaration of unfitness in terms of s11 Automatic unfitness in terms of s12(1) Discretionary unfitness in terms of s12(2) Case law

Methodology Research in 4 provinces, rural and urban – 4 provinces cover 72% of all applications 92 interviews or focus group sessions with magistrates, prosecutors and police 376 records from Criminal Records Centre perused and analysed 250 firearm licence applications perused and analysed Two cases observed

National Firearms Data 3 654 434 firearms registered to individuals as at October 2002 81 242 registered in names of institutions 103 056 applications approved Jan-Oct 2002 5 453 applications refused Jan-Oct 2002 Only 541 successful s11 applications

Section 11 49% of all successful applications in Western Cape January to October 2002 26% in Gauteng Fewer than 10 each in KZN, Limpopo, Northern Cape None in Mpumulanga Importance raised since case of Van Duivenboden

Police – Findings on application procedure Safes – some confusion regarding specifications Background interviews – face-to- face only with partners, depends on other information whether conducted Mental and emotional stability, propensity to violence – police find difficult to measure Domestic Violence register – inconsistency Alcohol and drugs – difficulties

Police Findings cont. Stated refusal criteria Absence of or incorrect safe Inadequate overall security Provision of false information Previous convictions Prior declaration of unfitness

Police Other Application Factors Unemployment not a factor Other firearm licences checked, but checks on possession not always done “Competency certificates”

Police and s12 Police perception that courts are not applying s12 Confusing term “no order made” Unnecessary s11 hearings held

Magistrates Reasons given by accused why they should not be declared unfit: Need firearm for For work For self-protection To protect their business

Magistrates Accused rarely contest declaration Most accused commit crimes with unlicenced firearms Magistrates rarely overturn automatic declaration

Magistrates – s12 S12(1) automatic declaration - “No order made” inconsistency S12(2) discretionary declaration – only with crimes involving violence, but some said would not come to mind if firearm not involved in the matter

Prosecutors Prosecutors say seldom have endorsement on docket from police Is magistrate’s duty to raise declaration of unfitness with crimes involving firearm With crimes not involving a firearm, would raise the issue if degree of violence high – but some said this seldom happened Tendency to wait for detective or magistrate to raise the issue

Analysis of Criminal Records 376 SAP 69 files perused In 87.9% records magistrates did not state on SAP 69 whether or not the accused had been declared unfit to possess a firearm - left blank In only 6.3% of cases in the sample did magistrates expressly state that the accused had been declared unfit

Statistical Analysis CFR receives 14 000 applications each month on average 250 Firearm licence applications randomly selected Of these, 124 approved by CFR

Age of Applicant

Conclusions Ultimate responsibility for approving and declining firearm applications rests with the CFR Prosecutors appear to lack initiative regarding declarations of unfitness Magistrates tend to consider declarations of unfitness primarily where a firearm is involved “No order made” creates confusion in respect of automatic declarations

Conclusions Magistrates do not routinely declare people unfit Background checks by local police are as thorough as is possible given constraints relating to resources Police are conducting more s11 than before The Firearms Appeals Board seems to lift declarations of unfitness routinely

Recommendations Re-training in respect of automatic declarations of unfitness Standardise manuals and procedures Awareness of Domestic Violence Act Link police and court systems regarding protection orders Prosecutors give clear instructions to investigating officers regarding confiscation of firearm Police interview partners of applicant